High court to rule on couple’s bid to strike out repo order
The couple say the company claims €1.4m is due on foot of an IR£40,000 loan taken out in 1997.
John and Shelia Nolan, Tallaghan, Ballinagare, Casterea, Co Roscommon, in 1997 entered into a mortgage agreement with Wise Mortgage Company Ltd. The £40,000 loan was to be repaid over 15 years via monthly repayments of £552, amounting to a total of £99,399.
Their loan was transferred to Home Funding Corporation Ltd (now Vivier Mortgages Ltd) later in 1997 and it is alleged the couple stopped making repayments on the loan in 2000. Home Funding brought proceedings seeking a possession order for their home in 2001.
Home Funding wants to have the possession application re-entered and its lawyers wrote to the couple last year seeking €1.4m it claims it is now due.
The couple, represented by Peter Bland, claim the company did nothing to advance the claim between 2001 and 2014. The delay was inordinate and inexcusable, and the proceedings should be struck out, they argue.
The couple also claim Home Funding’s explanations for the delay lacks candour. Home Funding failed to disclose the real reasons for the delay, which they say was due to difficulties encountered by Home Funding founder Ian Leaf, including a spell in prison.
Home Funding claims the delay was due to an oversight; a receiver being appointed to the company in 2007; and negotiations aimed at settling the matter. The Nolans reject those reasons, the court heard.
In opposing the application to strike out the case, the company’s lawyers reject claims there was a lack of candour or that Mr Leaf’s difficulties had anything to do with the delay. They accept while there was a delay in bringing the case, it is in the balance of justice that the application for repossession go ahead.
The bid to strike out the proceedings was heard by Ms Justice Isobel Kennedy. Following the conclusion of submissions from the parties the judge said she would give her ruling this morning.
Martin Canny, for the company, yesterday said it was accepted the delay was inordinate. He said reasons were advanced by the firm to explain the delay and that the relevant period of delay was between 2006, after attempts to resolve issues with the Nolans failed, and 2014.
The balance of justice favoured allowing the matter go before the courts, he said. The Nolans had not shown any specific prejudice they would suffer if the case proceeds. Counsel said the Nolans have a counterclaim They say the loan advanced to them in 1997 was an unconscionable bargain.
Counsel also rejected claims of a lack of candour shown by the company. The incarceration of Mr Leaf, now called Mr Ian Andrews was not relevant and was unrelated to the delay in the case. Counsel said he had nothing to do with the running of the company.
Mr Canny was replying to Mr Bland who argued nothing happened for many years because of Mr Leaf’s difficulties. Mr Leaf was extradited to England from Switzerland in 2004. He was convicted of 13 counts of fraudulent trading. Mr Leaf was jailed for 10 years but released in 2008, he added.
Mr Leaf also had confiscation orders made against him after being convicted of fraud calculated as being Stg£99.8m. Following the confiscation orders, a receiver was appointed over his assets, including Home Funding. There was a change in control of Home Funding in 2011 when it was sold to City Corporation Ltd, a company owned by an associate to Mr Leaf, it is claimed.
The current shareholder of the company is believed to be a nominee of Mr Leaf and charges are held over the firm by entities controlled by Mr Leaf, including his third wife, parents, and trusts operating at his behest, counsel added.
Home Funding and Mr Leaf, aka Mr Andrews, were featured in an RTÉ Prime Time investigation aired earlier this month.
In reply, Mr Canny, who said his client denies the Nolans’ claims, said defamation proceedings have been brought against RTÉ over the broadcast.
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